Judicial Engagement in Practice: Economic Liberty

Adam Shelton · July 17, 2020

The Institute for Justice fights every day to ensure that all Americans enjoy the freedoms guaranteed to them by the Constitution. As part of this work, the Institute has long advocated for judicial engagement. That is, the idea that judges should analyze and evaluate the facts in every constitutional case that comes before them and not prejudge a case in favor of the government.

This may not seem like a radical idea. But unfortunately, in practice, it is. There are a whole host of cases in which judges give extreme deference to federal and state governments and act as little more than a rubber stamp in support of laws, regulations, and policies.

The Rational Basis Test

This abdication is prevalent in many areas in which IJ litigates. But it is most prevalent in cases involving economic liberty. This prevalence is due to the so-called rational basis test.

Under this “test” a court will uphold a law if it is rationally related to a legitimate government purpose. Now this might not sound too terrible. But baked into this test are two crucial ideas which render it toothless in a majority of cases.

First, courts often ignore the true ends of the government in enacting a law that restricts economic liberty. In fact, a unanimous Supreme Court in a 1993 case held that under the rational basis test the government’s “reasons for enacting a statute . . .  [are] entirely irrelevant.” Meaning even if the government passes a law for unconstitutional reasons, the court will ignore those reasons and uphold the law. At least when employing the most radical version of the test.

Second, courts will sometimes help the government think up reasons for enacting a law. It does not matter if the reasons are purely hypothetical. The plaintiff, to win under this radical version, must prove that there is no conceivable basis for the law. This includes rebutting bases that the government hasn’t even raised, but that some judge, at some point in the litigation, might think of. The government does not even need to present evidence that the restriction will solve the problem. Mere speculation will do.

In other words, the way the courts have often employed the rational basis test in the context of economic liberty makes the courts little more than a rubber stamp for the government. But this is hardly the judiciary the Founders envisioned. Alexander Hamilton in Federalist 78 explained that the courts were to be the intermediary between the people and the legislature and were designed to keep the legislature within the limits established by the Constitution. Hamilton further explained that courts were to be “bulwarks of a limited Constitution against legislative encroachments.” But the courts cannot do that when they give blind deference to the legislature, or any other arm of the government, for that matter.

The need for judicial engagement is better understood in the context of real cases. Both cases in which the court failed to be engaged and cases in which judges properly executed their judicial duty. Cases restricting economic liberty are a good place to start.

Florists, Casket Sellers, and Eyebrow Threaders

A typical example of judicial abdication, one Clark Neily highlights in his groundbreaking book Terms of Engagement, comes from Louisiana. Louisiana required florists (yes, people who arrange flowers) to get a license. This license did not just require a person to pay a small fee and register with the state. Instead, they had to pass both a written and practical examination.

This practical examination required the applicant to create a floral arrangement. Then, licensed florists judged the arrangements. Unsurprisingly, most people failed the practical examination as the already licensed florists had a vested interest in limiting the competition in the market.

IJ challenged this licensing scheme in federal court but ran headlong into the rational basis test and judicial abdication. The state asserted that this scheme was necessary to ensure the health and safety of Louisianians buying flowers. The court accepted this without much question, even though no evidence suggested that unlicensed florists caused any harm. Something that should have been easy to prove were it true, as Louisiana was the only state that licensed florists.

An engaged judge would have evaluated the law and the evidence to determine whether the law actually sought to protect health and safety. If that had been done, the court would have concluded that the licensing scheme was much more about protectionism and preventing competition than protecting citizens from unlicensed florists. But as the court employed the most deferential form of the rational basis test, it did not require the government to present any evidence justifying the restriction and brushed aside all evidence presented that showed the scheme lacked a public purpose.

An IJ case about casket sellers in Oklahoma is another good example of judicial abdication. Oklahoma required those who wanted to sell caskets to first obtain a funeral directors license—even if the seller provided no other funeral services. Unfortunately, this was another law evaluated under the most deferential form of the rational basis test.

The Tenth Circuit approved this law and did not even require the government to show that a problem existed. But more radically, in the face of evidence that the law was enacted for pure intrastate economic protectionism, the court explained “that while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.”

With that, the court abdicated its responsibility to ensure that the government respected all citizens’ constitutional rights and instead held that the government can dole out special favors.

But not all is bleak—even when it comes to the rational basis test. In employing this test judges can still be engaged when they require the government to present evidence (or at least evaluate the evidence proffered by the plaintiff) and actually analyze the facts.

This happened in another case about caskets. This time the case arose due to Benedictine Monks who sought to build and sell caskets to support their religious community. Louisiana required anyone who sold caskets to obtain a funeral directors license, even if they performed no other funeral-related services.

The state asserted that the license was needed to protect consumers from dangerous products and to protect the general health and safety of the public. But the Fifth Circuit did not buy it. The court explained that a funeral director received no training on the selling of caskets and the licensing scheme did not even set out any requirements for caskets themselves. The court also noted that Louisiana did not even require people to be buried in caskets! Under the law, people could be buried straight in the ground with no receptacle.

The court explained that while the policy choices of the legislature were owed deference, deference was not synonymous with blindness. The court also explained that it did not have to accept nonsensical explanations for regulations. In sum, the court evaluated the facts and evidence to measure the laws purported purpose against its restrictions. The court found that no evidence supported such a law, and thus that the requirement was unconstitutional.

Another example of an important aspect of judicial engagement in the economic liberty context can be seen in a landmark Texas case about eyebrow threaders. Texas required eyebrow threaders to obtain a cosmetology license. The license required 750 hours of training from a beauty school, even though eyebrow threading was generally not a part of beauty school curriculum.

The Texas Supreme Court struck down this requirement as a violation of the Texas Constitution. The court affirmed that the state constitution protects the right to earn an honest living. It then made a truly engaged move and broke with how the federal courts analyze economic regulations, holding that the burden of regulated parties needed to be considered when determining the constitutionality of a given restriction, not just the irrationality of the law itself.

Each state has its own constitution. But many state courts have interpreted their constitution in lockstep with the federal constitution. Moreover, many state courts have adopted the levels of scrutiny created by the federal courts in evaluating their own constitutions. Part of judicial engagement is state courts evaluating their constitutions independently—engaging with their specific text, history, and circumstances. Most state constitutions were adopted at a vastly different time and under different circumstances than the U.S. Constitution. Unfortunately, many courts examine their state constitution as if it were a mere copy of the federal version.

Going Forward

At its core, judicial engagement is the idea that judges should actually judge in each case that comes before them.

Sometimes, as in cases involving restrictions of the right to earn an honest living, it means that judges should evaluate facts and evidence instead of simply deferring to the government. It means that the court must be an independent evaluator of the facts and not place a large thumb on the scale in favor of the government.

Other times, as in cases evaluating economic restrictions challenged under a state constitution, it means that courts should independently evaluate their state’s constitution. Sometimes, the state constitution will be very similar to the federal one. But it can also be more protective. The U.S. Constitution is a floor that state constitutions can go above. State courts should, when the drafters of their constitution used different language than the U.S. Constitution, respect that decision and give meaning to those differences.

As it is challenging to adequately define and explore the contours of judicial engagement in the abstract it is important to examine the idea in the context of real cases. As a result, this post is the first in a series that will examine how judicial engagement works in each of the areas that IJ litigates. Stay tuned for explorations of judicial engagement in cases involving free speech, private property rights, educational choice, and governmental immunity!

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.